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Abstract
This essay takes up Robert Cover’s account, in “ Nomos and Narrative” of Constitutional Epics. Ranging across legal and literary texts including Toni Morrison’s Beloved, David Malouf ’s An Imaginary Life, the Canadian Arar Commission Report, and Bringing Them Home, the Report of the Australian Human Rights and Opportunity Commission’s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, it concludes that what comparative study of Constitutions and their Epics might yield are brutal truths and the judgments of history, but also insights into how we might make of that unpromising material a nomos and a narrative of redemptive Constitutionalism.
Notes
* Thanks are due to Villanova University School of Law Dean Mark Sargent, and Associate Dean for Faculty Research John Gotanda for the research support that enabled the writing of this Essay, and to Rahim Walji, Villanova University School of Law class of 2010, for thoughtful and perceptive research assistance.
1. Nan Seuffert, Jurisprudence of National Identity: Kaleidoscopes of Imperialism and Globalisation from Aotearoa New Zealand (Aldershot and Burlington, Vermont: Ashgate, 2006), 138
.2. Virginia Woolf, Orlando (San Diego, New York, and London: Harcourt Brace & Company, 1928), 205
.3. Seuffert, supra note 1, at 2–3.
4. Id. at 136.
5. Id. at 5, quoting the Rt. Hon. Helen Clark, “Post-Cabinet Conference: 23 June 2003,” cited in Seuffert, supra note 1, at 136.
6. These include contributions to the “Tribute to Robert Cover,” 96 Yale Law Journal 1699 (1987); the “Tribute to Robert Cover,” 7 Journal of Law and Religion (1989); the “Series on Robert Cover,” 8 Cardozo Studies in Law and Literature (1996); the “Symposium—Rethinking Robert Cover’s Nomos and Narrative,” 17 Yale Journal of Law and the Humanities (2005); and Issues in Legal Scholarship 2006: Robert Cover’s Nomos and Narrative , http://www.bepress.com/ils/iss8/art3 [hereinafter “Issues 2006: Cover”].
7. See, e.g., Robert A. Burt, “Robert Cover’s Passion,” 17 Yale Journal of Law and the Humanities 1, 5 (2005)
.8. Id.
9. Robert C. Post, “Who’s Afraid of Jurispathic Courts?: Violence and Public Reason in Nomos and Narrative,” 17 Yale Journal of Law and the Humanities 9, 14 (2005).
10. Id. at 16.
11. Id.
12. Robert M. Cover, “The Supreme Court, 1982 Term—Foreword: Nomos and Narrative,” 97 Harvard Law Review 4, 18 (1983)
, quoted in Post, supra note 9, at 9–10.13. Cover, supra note 12, at 16, quoted in Post, supra note 9, at 10.
14. Cover, supra note 12, at 58, quoted in Post, supra note 9, at 11.
15. Cover, supra note 12, at 12, quoted in Post, supra note 9, at 12.
16. Post, supra note 9, at 14.
17. I do not take this to be Cover’s resting place in “Nomos and Narrative,” as this essay will go on to suggest. Registering that communities may be “redemptive or insular,” Cover counsels “[i]t is not the romance of rebellion that should lead us to look to the law evolved by social movement and communities. Quite the opposite. Just as it is our distrust for and recognition of the state as reality that leads us to be constitutionalists with regard to the state, so it ought to be our recognition and distrust for the reality of the power of social movements that leads us to examine the nomian world they create. And just as constitutionalism is part of what may legitimate the state, so constitutionalismmay legitimize, within a different framework, communities and movements,” Cover, supra note 12, at 68.
18. See, e.g., Burt, supra note 7, at 5.
19. Cover, supra note 12, at 68.
20. Richard Mullender, “Two Nomoi and a Clash of Narratives: The Story of the United Kingdom and the European Union,” in Issues 2006: Cover, supra note 6, at 12.
21. Cover, supra note 12, at 24.
22. Id. at 19–25.
23. Id. at 17.
24. Id., invoking W. B. Gallie, Philosophy and the Historical Understanding (New York: Schocken Books, 1964
).25. Cover, supra note 12, at 25.
26. Id. at 39.
27. Id. at 25.
28. Id. at 18.
29. Kwame Anthony Appiah, “Race,” in Critical Terms for Literary Study, ed. Frank Lentricchia & Thomas McLaughlin (Chicago: The University of Chicago Press, 1990), 274–97.
30. Drucilla Cornell, Transformations: Recollective Imagination and Sexual Difference (New York: Routledge, 1993), 23
.31. Cover, supra note 12, at 9.
32. Id. at 4.
33. Id. at 34.
34. Id.
35. Id. at 51.
36. Id. at 35.
37. Marianne Constable, Just Silences: The Limits and Possibilities of Modern Law (Princeton: Princeton University Press, 2005), 178.
38. Cover, supra note 12, at 4.
39. Peter Goodrich, Law in the Courts of Love: Literature and Other Minor Jurisprudences (London and New York: Routledge, 1996), 112.
40. Cover, supra note 12, at 7.
41. “As a young lawyer in the Reagan administration, Supreme Court nominee Samuel A. Alito Jr. wrote [in a successful job application for a promotion in the Meese Justice Department] that ‘the Constitution does not protect a right to an abortion,’ declared his firm opposition to certain affirmative action programs, and strongly endorsed a government role in ‘protecting traditional values.’” Joe Becker & Charles Babington, “No Right to Abortion, Alito Argued in 1985,” The Washington Post, Nov. 15, 2005, at A01.
42. See, e.g., John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, Memorandum for William J. Haynes II, General Counsel, Department of Defense, Jan. 9, 2002, at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.09.pdf; Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Department of Justice, Memorandum for Alberto R. Gonzales, Counsel to the President, Aug. 1, 2002, at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf
43. Commonwealth of Australia Constitution Act, § 51 (xxvi).
44. Gavan Griffith, Q.C., Kartinyeri v. Commonwealth (Hindmarsh Island Bridge Case), transcript of argument, High Court of Australia, February 5, 1998, quoted in Tony Blackshield & George Williams, Australian Constitutional Law and Theory: Commentary and Materials, 4th ed. 1000 (2006).
45. David Marr & Marian Wilkinson, Dark Victory (Crows Nest, New South Wales: Allen & Unwin, 2004), 280.
46. Penny Pether, “The Prose and the Passion,” 66 Meanjin 43, 45, 46 (2007).
47. Marr & Wilkinson, supra note 45, at 367.
48. Id. at 281.
49. Id. at 235.
50. Cover, supra note 12, at 17.
51. Quoted in Marr & Wilkinson, supra note 45, at 367–68.
52. Robin West, “The Lawless Adjudicator,” 26 Cardozo Law Review 2253, 2253 (2005)
.53. Cover, supra note 12, at 39.
54. Id.
55. Id.
56. Id. at 45.
57. Id.
58. Id. at 67.
59. Id. at 45.
60. Id.
61. In the U.S. context, the Report of the 9/11 Commission is arguably the most noteworthy recent example of this genre.
62. The two quasi-legal texts discussed in this essay are epic in their scale. Bringing Them Home runs to 689 pages. The three volumes of the public version of the Arar Commission Report number 462, 822, and 373 pages, respectively.
63. There may be others: as I’ve suggested elsewhere, poetry, see Penelope Pether, “Militant Judgment?: Judicial Ontology, Constitutional Poetics, and ‘The Long War,’” 29 Cardozo Law Review 2279 (2008)
; also genre fictions, which map the iterative process of repetition and change.64. Cover, supra note 12, at 18.
65. A term coined by Peter Goodrich, supra note 39.
66. (Ottawa: Arar Commission, 2006) [hereinafter “Arar Commission Report”].
67. Id., Analysis and Recommendations, at 9.
68. Id., Analysis and Recommendations, at 10.
69. Id., Factual Background, Vol. I, at 12.
70. Cover, supra note 12, at 46.
71. Cover, supra note 12, at 33.
72. Marr & Wilkinson, supra note 45, at 187–88.
73. Id. at 138, 139–40, 141, 142–43, 158, 160, 161, 163, 200, 210, 214, 216, 222, 228, 271, 293–94, 367–68, 382, 389.
74. Id. at 139.
75. Id. at 203.
76. Robert M. Cover, “Violence and the Word,” 95 Yale Law Journal 1601, 1601 (1986).
77. Arar Commission Report, supra note 66, Analysis and Recommendations, at 9.
78. Marr & Wilkinson, supra note 45, at 367.
79. David Malouf, “Afterword: A Note on Sources,” An Imaginary Life (New York: George Braziller, 1978), 154.
80. Id. at 67.
81. (Sydney: Human Rights and Equal Opportunity Commission, 1997) [hereinafter “Bringing Them Home”].
82. 532 F.3d 157 (2008).
83. Thanks are due to my former student Kristin Repyneck, Villanova School of Law J.D. 2007, for this insight.
84. 190 C.L.R. 1 (1997).
85. 174 C.L.R. 455 (1992).
86. Kruger v. Commonwealth, supra note 84 at 95.
87. Leeth v. Commonwealth, supra note 85, at 483–90.
88. Kruger, supra note 84, at 66–67.
89. Bringing Them Home, supra note 81, at 3.
90. Id. at 3–4.
91. Id. at 13.
92. Bringing Them Home, supra note 81, at 168.
93. Id. at 225.
94. Id. at 212.
95. Arar Commission Report, supra note 66, App. 7, Factual Background, Vol. II, at 789–819.
96. Id. at 818.
97. In 2006 the New York Times Book Review anointed Beloved the best American novel of the previous twenty-five years.
98. Toni Morrison, Beloved (1987; New York: Vintage, 2004), 235
.99. Id. at 234.
100. Id. at 235.
101. Id. at xvi–xvii.
102. Id. at 5.
103. Id. at 6.
104. Steven Weisenburger, Modern Medea: A Family Story of Slavery and Child-Murder from the Old South (New York: Hill & Wang, 1998), 278–80.
105. Pether, supra note 63, at 2300.
106. 7 Washington and Lee Race & Ethnic Ancestry Law Journal 11 (2001).
107. Id.
108. Pether, supra note 46, at 44.
109. Id. at 58.
110. Id. at 53.
111. Id. at 68.
112. Id.